EFF Decries ‘Sham’ Copyright-Troll Legal Tactics

The copyright litigation factory known as Righthaven has been exposed as making what the Electronic Frontier Foundation said Monday were bogus claims to judges that it “holds the exclusive right” to news articles at the center of its infringement lawsuits.

Las Vegas company Righthaven begun suing hundreds of bloggers last year for reposting pictures and stories previously published by the Las Vegas Review-Journal, owned by Stephens Media. In its lawsuits, Righthaven claims it was assigned ownership of the copyright by the newspaper. Dozens of cases brought by Righthaven on these grounds have settled out of court for a few thousand dollars each.

But the EFF’s Kurt Opsahl said Righthaven’s and Stephens Media’s ownership claims are false, citing their own internal business documents.

EFF's Kurt Opsahl

“In short, the ‘assignment’ is a sham. Righthaven’s claim has been baseless from the outset. Stephens Media, which has struggled to hold the litigation at arm’s length, is the true and exclusive owner of the copyright and the only entity with standing to bring a copyright claim,” Opsahl, who is suing Righthaven, said in a blog post Monday.

The revelation — which the EFF unmasked when a Nevada federal judge unsealed Righthaven’s and Stephens Media’s internal agreement (.pdf) — appears to place Righthaven on an even lower scale than patent trolls. Those trolls purchase patents and sue for infringement without having ever created anything themselves, but at least they own the intellectual property in question.

As it turns out, however, Righthaven does not own the rights to reproduce, distribute, display or prepare derivative works of the articles it is suing over, even though it makes those claims in its lawsuits. (.pdf) Copyright law does not permit a person to sue for infringement unless that person owns “the rights to reproduce and distribute the work,” Opsahl said.

Righthaven's Steve Gibson

Steve Gibson, Righthaven’s CEO, said in a telephone interview Tuesday that it owns the copyrights to the works it sues on behalf, and has licensed back the content to Stephen Media, which did not respond for comment.

“We gave them exclusive licenses,” he said of Stephens Media of Las Vegas. “But that does not give them title. We own the underlying copyright.”

The internal agreement gives Stephens Media and Righthaven each a 50 percent stake in any settlements or verdicts. It says Stephens Media shall retain “an exclusive license to exploit the Stephens Media assigned copyrights for any lawful purpose whatsoever and Righthaven shall have no right or license to exploit or participate in the receipt of royalties from the exploitation of the Stephens Media assigned copyrights other than the right to proceeds in association with a recovery.”

The document was brought to light in a Righthaven case against the Democratic Underground blog. Righthaven sued the site last year after a user posted four paragraphs from a 34-paragraph Las Vegas Review-Journal story on Sharron Angle, the unsuccessful Republican Nevada candidate for Senate.

On behalf of Democratic Underground, the EFF and other attorneys countersued Righthaven. They sought damages for, among other things, claims that Righthaven did not have standing to bring the case against the Democratic Underground.

U.S. District Judge Roger Hunt, who is presiding over the case, unsealed the internal documents Friday over the objection of Righthaven and Stephens Media.

“As I have read these and other motions in this case, and considered the multitude of cases filed by Righthaven, on the claimed basis that Righthaven owns the copyrights to certain Stephens Media copy, it appears to the court that there is certainly an interest and even a right in all the other defendants sued by plaintiff to have access to this material,” the judge ruled. “Furthermore, because these cases have generated a great deal of public interest, particularly in the media and on the internet, that there is a right of the public to this information which overrides any claimed confidential commercial rights.” (.pdf)

Righthaven and Stephens Media have until May 8 to respond to Judge Hunt.